")-) Confidentiality is the exception and the rule is disclosure.
(-) The approach to confidentiality is suspicious.
(-) The privilege is interpreted in the manner of the Tzimtzum.
(-) The burden is on the person claiming privilege" (ibid., paragraph 2 of my judgment).
The protection that confidentiality provides for the protected value of press freedom is therefore broad but also fundamentally limited. We must return to the basic concepts that we discussed at the outset - freedom of the press is a public-institutional-democratic interest that must be protected. The policy considerations that underlie freedom of the press are broader than those expressed in the framework of confidentiality. And confidentiality is not necessarily the only legal path through which these considerations can be expressed. Therefore, on the level of principle, I accept Essenheim's argument for "two floors" of protection of journalistic raw materials. On the second floor, i.e., the privilege, I have just discussed. The time has come to turn to the first floor, and to the argument that the conditions set out in the case law must be interpreted for implementation Article 43 The order is in the spirit of press freedom policy considerations.
- In fact, although Eisenheim formulated this argument in a creative way (the "floor argument"), the approach that underlies it can also be found in the existing case law:
"[...] As a rule, an application for an order by virtue of section 43 will not be filed where there is an alternative route, which [...]
[...] Where an application is submitted to the court under section 43, it can decide whether to grant the request or reject it on the basis of the considerations considered under section 43; it can also reject it if it finds it acceptable to accept the claim of privilege and not remove it [...]
[...] An order by virtue of section 43 of the PDP separately, and a claim of privilege separately. Where it seems, prima facie, that the conditions of section 43 have not been met, the court is not required to examine the claim of privilege. Admittedly, where a claim of privilege is made, a hearing will be held and the argument will be heard, but in order for the order to be granted, it is required that both the conditions of section 43 and the conditions for the removal of the privilege must be met. Therefore, when the court was of the opinion that insufficient investigative actions were not taken, as the precedents in the matter of section 43 are instructed, this was - as stated - in order to cancel the order by virtue of this approach" [emphasis added - 10] (Makor Rishon, paragraphs 31,33, and 38 in accordance with the judgment of Justice Rubinstein).